Days after 'Poisoned Places' stories, EPA names names - and divulges no details

November 22, 2011

The Clean Air Act “watch list” is secret no more.

Just days after the Center for Public Integrity's iWatch News and NPR reported[3] that the U.S. Environmental Protection Agency maintains an internal list that includes serious or chronic violators of air pollution laws that have not been subject to timely enforcement, the EPA has posted the September and October watch list[4] on its website.

The EPA cited iWatch News' request for the Clean Air Act watch list, later published for the first time as part of a series on air pollution afflicting hundreds of communities[7], and said the agency would publish the lists as a demonstration of its commitment to transparency. However, important details on why each polluter is on the list will continue to be kept confidential, the agency said.

Some companies and their lawyers are watching the development closely because it may yield signs of potential legal action, as well as more general clues about the Obama administration's enforcement priorities.

"We would expect environmental groups to scrutinize facilities on the list carefully as they consider potential citizen action suits," wrote lawyers at Washington, D.C., law firm Arnold & Porter in an advisory to clients[8]. "The list may also provide fodder for plaintiffs' attorneys seeking to bring toxic tort suits." The lawyers, Jonathan Martel, Michael Daneker and Joel Gross, also speculated that energy extraction industries — oil, coal and gas, including hydraulic fracturing — "might be especially prone to inclusion" on the Clean Air Act watch list.

As iWatch News reported, the Clean Air Act watch list[9] illustrates the extent to which Washington is aware of the failure of states and the EPA to crack down on localized sources of hazardous airborne chemicals known as air toxics, even when violations have continued for years.

According to a 2008 EPA report[10], the watch list reflects “recidivist and chronically noncomplying facilities whose violations have not been formally addressed by either the state or EPA.” A 2009 report[11] by the EPA’s inspector general put it similarly: The list tracks “facilities with serious or chronic violations of environmental laws but with no formal enforcement response.”

EPA officials said facilities on the Clean Air Act watch list have not been subject to enforcement actions for at least 270 days following the discovery of a violation — a delay of nine months.

Most facilities on the list, which is updated monthly, are classified as high priority violators. Among the criteria[12] for becoming a high priority violator: Excessive emissions of air toxics; violation of a state or federal order; and monitoring or recordkeeping deficiencies that “substantially interfere with enforcement.”

According to the latest available data, the EPA knows of more than 1,600 “high priority violators” of the Clean Air Act — sites that regulators believe need urgent attention.

Until iWatch News and NPR obtained the July and September versions[9] of the Clean Air Act list by filing a Freedom of Information Act request, the documents had only been circulated within the EPA.

Officials told iWatch News that the agency previously worried that publishing the list of alleged violators would unfairly stigmatize some of the companies who were on the list. At the top of each list now featured on the EPA’s website, the agency states that “being on the Watch List may not mean that the facility has actually violated the law only that an evaluation or investigation” has led regulators “to allege that an unproved violation has in fact occurred.”

An EPA spokeswoman, citing the original Freedom of Information Act request from iWatch News for the watch list, noted “the EPA’s commitment to transparency.” She said deciding to post updated versions is intended “to allow the public direct access to the list, along with the necessary and accurate explanations of what the list represents, what it does not represent, how it is used and important data caveats.”

John Walke, clean air director at the Natural Resources Defense Council, said publication of the list by iWatch News already has had an effect. Impact of the Poisoned Places series[7], he said, has been “positive and widespread, with greater awareness surrounding the revelation of these watch lists and reporting on them, follow up inquiries by local media, citizens and local officials.” He said he hopes the EPA monthly posting of the lists will lead to “greater attention to compliance and public health once the spotlight is placed on these facilities, to explain whether they are protecting their communities.”

For all the EPA’s new openness about the identities of polluters on the lists, however, the agency said it will shield from disclosure the specific reasons each is included on the list. That will require some sleuthing.

Some violations for the facilities may be found in the EPA’s Enforcement and Compliance History Online database[13], but “enforcement decision-making information needs to be kept confidential so that the integrity and effectiveness of enforcement actions are not undermined,” said the spokeswoman.

Environmental organizations questioned that rationale. “Law enforcement need not be a secret enterprise,” said NRDC’s Walke. “Too often there is inadequate enforcement taken by state and local officials against local business” because of relationships with regulators and other political and economic considerations.

Some consider publication of such information as important safeguards for the public – especially during economically troubled times when regulatory agencies are being criticized for costing Americans their jobs and saddling companies with expensive burdens. Already, as iWatch News reported, many state environmental agencies have insufficient resources, and have failed to receive billions of dollars for enforcement contemplated in the Clean Air Act.

Now, as government streamlines and politicians seek to curb the reach of regulators that effect could be amplified. “The failure of the supercommittee will mean drastic across-the-board budget cuts at EPA and other agencies that will cripple law enforcement of health and safety standards in this country,” said NRDC’s Walke. “As the NPR and CPI series[7] showed, America is already failing to enforce existing environmental laws sufficiently to protect all of us.”